ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division ("ALJD") pursuant to S.C. Code Ann. § 61-4-520 (Supp.
1998) and 23 S.C. Code Ann. Regs. 7-90 (1976) following the Petitioner's request for a contested case hearing. The
Petitioner, Buck Hill Roadhouse & Country Store, seeks an on-premises beer and wine permit. After the Protestants filed
written protests with the South Carolina Department of Revenue ("DOR"), and upon the Petitioner's request, this matter was
transmitted by the DOR to the ALJD for a hearing. A hearing was held on January 11, 2000 at the ALJD in Columbia,
South Carolina.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find
by a preponderance of the evidence:
1. The Petitioner, Buck Hill Roadhouse & Country Store, seeks an on-premises beer and wine permit for an
establishment located at 1552 Wateree Dam Road, Ridgeway, South Carolina, in Kershaw County. The Petitioner is a
partnership among Cynthia A. Dabney, Daniel S. Dabney, and Gary W. Sligar.
2. Prior to the hearing, DOR moved to be excused from participation in the hearing. In that motion, DOR
indicated that it does not oppose the Petitioner's application and would have granted the permit but for the protests. The
Motion was granted.
3. The parties and the Protestants received notice of the time, date, place, and subject matter of this hearing.
The Protestants did not move to intervene.
4. Neither of the Protestants are challenging the Petitioner's suitability to hold the beer and wine permit.
Instead, they are challenging the suitability of the location.
5. The Petitioner proposes to operate from 6:00 a.m. until 10:00 p.m., Monday through Sunday.
6. The proposed location sits on six acres of land and is surrounded by trees. The Report of the South Carolina
Law Enforcement Division characterized the area as primarily commercial.
7. Child traffic in the area is from non-existent to very minimal.
8. The nearest school bus stop is more than one mile from the proposed location.
9. The nearest resident is approximately 1,000 yards from the proposed location and cannot be seen from the
proposed location.
10. The closest church is approximately 2.7 miles from the proposed location.
11. Sheriff Steve McCaskill is concerned about the danger posed by the surrounding highway system and the
danger posed by patrons of the Petitioner. He stated that the roads are hilly, and that there are numerous curves in the road.
Also, several roads are only partially paved.
12. Protestant J. Boyd Caldwell is also concerned about the possibility of impaired drivers on the surrounding
roads. Mr. Caldwell further stated that the area is now residential and that there is no need for a licensed establishment at
that location.
13. There is an establishment that holds an off-premises license approximately one mile from the proposed
location. There is another licensed establishment 2.7 miles away.
14. At least one of the three partners will be on the premises when open for business to ensure compliance with
State law regarding the sale of beer and wine.
15. The proposed location is not currently licensed; however, according to DOR's file, it was licensed from
approximately 1997 through 1999, and no one protested the application. There were no violations of the license, and there
is no evidence that there were accidents on the roads surrounding the proposed location. The proposed location has been
licensed periodically over the past 25 years.
CONCLUSIONS OF LAW
Based on the above Findings of Fact, I conclude:
1. The ALJD has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code,
as amended.
2. Under S.C. Code Ann. § 61-4-520 (Supp. 1998), no beer and wine permit may be granted unless the location
of the place of business is suitable. Although proper location is not statutorily defined, broad discretion is vested in the
ALJD to determine the suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118
(1981); Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
3. The determination of suitability "involves an infinite variety of considerations related to the nature and
operation of the proposed business and its impact on the community within which it is to be located." Kearney v. Allen, 287
S.C. 324, 326-27, 338 S.E.2d 335, 337 (1985) (citations omitted). The determination is not solely a function of geography.
4. In general, consideration may be given to any factor demonstrating the adverse effect the proposed location
will have on the community, Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984),
including the location's proximity to a church, school, or residence. S.C. Code Ann. § 61-4-520(7) (Supp. 1998). See also
Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991) (the proximity to a church, school, or
residence, by itself, may support of finding of unsuitability) (discussing the predecessor statute).
5. The proposed location is not within an improper proximity to residences, schools, churches, or playgrounds.
6. This Administrative Law Judge is concerned about the issues raised by the Protestants; however, there is no
evidence that there have been accidents in the area caused by intoxicated drivers leaving the premises during the time that the
premises was being operated by other owners. Further, there is no probative evidence that the granting of the permit
requested will cause an increase in the number of drivers under the influence of alcohol. There are already two
establishments in the area with beer and wine permits. Visitors to the area can, and do, bring the beer and wine from other
areas. The witness for the applicant testified that he and his other partners will ensure State law will be followed regarding
the sale of beer and wine. State law, among other things, prohibits the sale of beer and wine to an intoxicated person. S.C.
Code Ann. § 61-6-2220 (Supp. 1998). In order to deny the permit based on the probative evidence presented, an
assumption would have to be made that the proposed location will be operated in an unlawful manner. To do so, however,
would be speculative. An order predicated on speculation cannot stand. See South Carolina Energy Users Committee v.
Public Service Comm'n, 332 S.C. 397, 505 S.E.2d 342 (1998). Moreover, our courts have been critical of permit denials
when those denials are based on how a location might operate in the future. See Byers v. South Carolina ABC Comm'n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
7. As to the Protestant's issue that there is no "need" for a permit for the proposed location, "need" is not a
requirement under the law for the granting or denying such a permit.
8. After considering all of the relevant factors, including the nature of the business and the proposed closing
time, and weighing the evidence presented at the hearing, I conclude that the proposed location is suitable for an on-premises
beer and wine permit.
ORDER
THEREFORE, the South Carolina Department of Revenue shall continue processing the Petitioner's application for an on-premises beer and wine permit for the establishment located at 1552 Wateree Dam Road, Ridgeway, South Carolina.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
January 14, 2000
Columbia, South Carolina |
